Discussion on the law that applies to or affects Australia's emergency services and emergency management, by Michael Eburn, PhD and Barrister.

Posting on social media by police – and others

Today’s question relates to posting on social media by police, but in answering it I will extend my answer to other emergency services and other media. The question I’m asked:

… relates to the various state police forces using social media in an informal way to shame offenders. BAC readings, confiscated cars and edited photographs of infringement notices (with alleged offenders name omitted by editing) have been posted regularly on Facebook. Most have been photographed and posted on scene. These postings often attract some less than complimentary comments.

These offences are mostly strict liability and are dealt with by fixed penalty infringement notice. However, it the matter is challenged in court or the alleged offender is required to appear on summons, by posting the actual evidence before the infringement notice is paid, or the matter is put before a court, could this be an issue of bias? Given the often “light-hearted” (or unprofessional) police commentary and reactive public comments of what the punishment would be, could that have a bearing against the offender’s common law right to a fair trial? As mostly these offences are in regional areas and the name of the offender is often posted in the comments.

I would be interested in your opinion on “trial by Facebook”.

This is not a blog on criminal law, so I’ll only briefly touch on the actual question (sorry). There are rules about publishing material that may influence a trial but that generally relates to a jury trial. A jury may take into account material that is not presented in court and a jury. Judicial officers (judges and magistrates) would say they are less likely to be swayed by extraneous materials so the risk of prejudicing a summary matter (ie a matter heard by a magistrate) is very low. It follows that I don’t think publication of this sort of material would run the risk of influencing a trial or affecting the accused’s right to a fair trial before a judge or magistrate. The sort of matters being discussed are unlikely to lead to jury trials.

I think however there are other issues. I have previously written on the new ‘reality’ television involving cameras in ambulances – How are reality ambulance shows legal? (Updated) (October 9, 2018). There are also reality police shows, think ‘Cops’ and ‘RBT’ and many more. I think the issues between the police and ambulance are different. When I call for an ambulance, or an ambulance is called for me, the paramedics are in a therapeutic relationship with the patient. They are there to act in the patient’s best interest. Further the nature of the relationship would carry with it an expectation of confidentiality and privacy. People are at their most vulnerable and share private information with paramedics for the purpose of enhancing their health care, not to create popular entertainment. Facilitating film crews to attend and observe that interaction, and having cameras in an ambulance is, in my view, indefensible regardless of the community education that may be involved.

Police are different. When police investigate a crime or stop someone to administer RBT they are not that persons’ ‘police officer’. They do not owe a duty of care to the person they are arresting or investigating – see No liability for police shooting (February 13, 2013) and Sullivan v Moody [2001] HCA 59. It’s been noted on this blog there is no right to privacy and people can film that which they can see from a public place. That is true for television crews and police so if they are filming RBT stops or street scenes from their police car camera there can be no objection. Equally one knows that a conversation with police is not subject to the same confidentiality, it may be repeated in evidence and that is the basis of the need for police to caution a suspect ‘that the person does not have to say or do anything but that anything the person does say or do may be used in evidence’ (Evidence Act 1995 (Cth) s 139). That tells a person who is subject to official questioning that this is not a private chat.

That does however raise concerns in my mind in these shows where the video is taken in a place other than a public place eg at the police station or in the RBT ‘booze bus’. Is the person cautioned that they are being videoed and that whatever they say or do in front of the camera may also be used in evidence?

That then brings us to the question of social media. For the reasons given for television programs it should generally be considered inappropriate for paramedics or ambulance services to distribute information on social media about the jobs they are attending. The same would be true for police. I say ‘generally’ as there may be good reasons. I can think of three reasons for putting information about jobs and photos of jobs on tv or social media. They are:

Public education;

Brand promotion; and

Community entertainment.

The argument for public education is that having shows like ‘Ambulance’ or ‘COPS’ helps to show people what is or is not appropriate conduct. What is an ‘emergency’ that warrants a triple zero call; what is illegal conduct. I can see that more from the perspective of police. If a show like RBT shows people getting caught and saying why they thought they were ‘ok’ etc then viewers may relate to those on the TV and think “I can see that could be me and what I thought was OK, is not”. Equally social media photos of unsafe vehicles or other events that lead to prosecution may be an effective way to demonstrate – “this is what we mean by unsafe load or unsafe driving”. Ambulance shows may also demonstrate how easy it is to kill yourself.

Social media may be an important tool because of its immediacy to report that something is happening in a location in order to advise (another form of education) so people know to avoid the area or to try to limit rumours and speculation as to what is happening.

Brand promotion is the public relations exercise. This shows people what we do so they have a better understanding. Again, this may be more important for police who are not always universally liked, unlike paramedics who are consistently rated in the top 5 most trusted professions in Australia. Building brand recognition and value is important but should vulnerable people be used for that purpose?

Finally, there is simply public entertainment and sharing in a communal laugh at someone else’s expense. Here I’ll share here my own experience. Once I was a volunteer media officer for one of Australia’s emergency services. I was part of a team providing 24-hour media support during an ongoing emergency and I had the night shift. My job was to update the social media pages and I was required to add a post every time a unit was called out to a ‘flood rescue’. What we meant by flood rescue was not what the world always assumed we met so each post was met with a regular flood (no pun intended) of comments about how stupid the person was to have got themselves into that position, even though the commentator, and I, had no idea what had happened and whether the person had driven into flood water, or was just on the wrong side of flood waters and needed urgent assistance to get to the other side. I could see no value in what we were doing other than encouraging voyeurism as the people reading the posts certainly were not in the danger zone. It may have been a way to build our brand (‘Aren’t we heroes?’) but mostly it was creating entertainment at someone else’s expense (and no I don’t volunteer in that role any more).

That matrix may not be directly applicable to police but certainly a matrix for police would not, or should not, look much different.

Discussion

The question I was asked was whether the use of social media by police was likely to affect an accused’s right to a fair trial and due process. Put that way the question is out of scope for this blog, so the short answer is ‘unlikely where cases are heard, if they are heard, by a magistrate not a jury’.

What the question raised was, more significantly, the growing use of social media by police and emergency services. Social media, the 24-hour news circle and the use of news, and tragedy, as entertainment is a reality in our world. It is trite to say that there is a difference between what is in the public interest, and what the public are interested in. The public may be interested in whatever the emergency services are doing but that does not mean it is in the public interest to reveal all the details including sensitive personal information.

Having said that, this is a blog about law and legal issues. I don’t think the police are acting contrary to law if they, like anyone, film what they can see from a public place – so video or photos that police may take of offender’s in the street is fair game. Information that police obtain because they are police and gain access to areas that others would not gain access to, such as the police station, is more problematic (see also Taking photos whilst on duty with the NSW RFS – amended(October 26, 2013)).

Police do not have the same relationship with an alleged offender that a paramedic has with a patient but the relationship of gaoler and prisoner is a well-recognised relationship giving rise to a duty of care so police must owe a duty of care to anyone who is under arrest and in their custody.

I think the test should be ‘if we would stop someone else taking images here, then even if we take them for forensic (court) purposes we should not tweet them’. That means if they are interviewing someone in the street or conducting RBT, a person can film them so the police too can take and use images (see Bystanders photographing an emergency (February 2, 2016) Interestingly, given my correspondent’s comment “I would be interested in your opinion on “trial by Facebook”” that post refers to an article “NSW Police Slam ‘Trial By Social Media’ As Mardi Gras Brutality Video Goes Viral”. If trial by social media is bad for police, it’s bad for everyone).

If someone wanted to enter a police station to film an interview or someone being breath tested, or if someone asked if they could take a photo of an officer’s notebook or an infringement notice, then police would (hopefully) say ‘no’. If a citizen isn’t allowed to take that image, then police should not themselves publicise that image. To do so would, in the words of Baron and Townsend, be exploitative.